getting milked?

IJ Challenges Compelled Speech in "got milk?" Ad Campaign

By Steve Simpson

You’ve probably seen the ads on TV or in magazines. Usually they feature someone with a mouth full of cookies or chocolate cake who suddenly realizes they are out of milk, followed by the catchy slogan “got milk?” What you may not know is that dairy farmers are forced to pay for these and other dairy ads under a federal program called the Dairy Promotion Program.

The program is one of a multitude of state and federal programs that allow industry boards, usually composed of a few producers appointed by the government, to create generic ad campaigns designed to boost demand for their products. Programs exist for products as diverse as beef and pork, honey, watermelons, fresh cut flowers, peanuts, popcorn, pecans, as well as mohair and alligator skins, to name just a few. The catch is that all producers are required to pay for these ads whether they want to or not, and, of course, the costs are passed along to consumers. Advertising, it seems, is increasingly something that governments feel is too important to be left to individual producers and the free market.

To help put a stop to this coercive trend, IJ recently took over the appeal of a case challenging the Dairy Promotion Program under the First Amendment. Our clients, Joseph and Brenda Cochran, own and operate a small commercial dairy farm in Tioga County, Penn. The Cochrans are “traditional” dairy farmers, which essentially means that they run their farms in a less intensive manner than larger-scale, more commercialized dairy farms. Traditional dairy farmers allow their cows more room to graze and to move around; they pay more attention to the environment and they don’t use bovine growth hormone. In the Cochrans’ view, traditional dairy farming results in healthier cows, a cleaner environment and a superior product. Judging by the booming market for organic products, many people agree with this approach to farming.

The Cochrans thus have every reason to distinguish their milk from that of larger- scale producers. The Dairy Act, however, compels them to do just the opposite. It requires them to fund ads through the Dairy Promotion Program whose message is that all milk is the same, regardless of who produces it or what methods they use. The Cochrans are thus forced to support a message and farming practices they have specifically chosen to reject.

The impact on the Cochrans’ freedom of speech is clear. The U.S. Supreme Court long ago held that the First Amendment does not allow government to compel individuals to speak just as it does not allow government to prevent them from speaking. Speech wouldn’t be “free” after all if government could require people to convey officially sanctioned messages. The same principle applies to compelling people to pay for speech with which they disagree. As Thomas Jefferson once said, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.”

Unfortunately, the Court has not always applied these principles consistently and has issued some confusing decisions on agricultural promotional programs like the Dairy Promotion Program. In one case, the Court upheld compelled subsidies for advertising of California peaches and nectarines that were part of a broad regulatory scheme that effectively collectivized the market for those fruits, treating the law more like an economic than a speech regulation. A few years later, in a case in which IJ filed an amicus brief, the Court struck down the Mushroom Promotion Act, a law almost identical to the law the Cochrans are challenging. The Court held that laws with the sole purpose of forcing individuals to finance speech are unconstitutional. The Cochrans viewed the mushroom case as a clear rebuke to agricultural promotion acts such as the Dairy Act. Unfortunately, the district court in their case disagreed and upheld the Dairy Act, concluding, in essence, that because the milk industry is regulated, compelling individuals to finance advertising of milk poses no problem under the First Amendment.

The district court’s decision essentially allows government to trump freedom of speech so long as it does so in the course of regulating economic affairs. Given the prevalence of economic regulation, this is a very troubling ruling indeed. It is also a textbook example of the tendency of restrictions on some rights to lead to restrictions on all rights. This is a trend that IJ is constantly battling against and one that, given the confusing precedent in this area, might well land back before the U.S. Supreme Court sometime soon.